Petition for Writ of Certiorari — Holdiness v. CSX Transportation, Inc.

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G1l-132%

No. | FEB 18 1992

IN THE

Suprenve Court of the United States

OCTOBER TERM, 1991

JAMES D. HOLDINESS,

Pe tition. r

Vv.

CSX TRANSPORTATION, INC..,

Re sponde nt.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

IRVING SCHWARTZMAN *

ROGER J. GREEZICKI

SAVAGE & SCHWARTZMAN, P.A,

5 Light Street, 10th Floor

Baltimore, Maryland 21202

(410) 685-2713

Counsel for Petitioner

* Counsel of Record

WILSON - EPES PRINTING Co.,. INC. - 789-0096 - WASHINGTON. D C. 20001

QUESTION PRESENTED

Whether the Court of Appeals erred in affirming the

District Court’s order of summary judgment.

(i)

PARTIES TO THE PROCEEDING

James D. Holdiness (‘‘Holdiness”) was the Appellant

in the proceeding in the United States Court of Appeals

for the Fourth Circuit, whose judgment is sought to be

reviewed.

CSX Transportation, Incorporated (“CSX”) was the

Appellee in the proceeding below.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......... i

PARTIES TO THE PROCEEDING ....... peo il

TABLE OF AUTHORITIES ............. aes iv

Orimions BELOW ................................. = 1

I ieee eecececee 2

STATUTE INVOLVED ............0...00.0000000000000-0-- 2

STATEMENT OF THE CASE 2

REASON FOR GRANTING THE WRIT oan al 4

I. THE DECISION TO GRANT SUMMARY

JUDGMENT AS TO THE PETITIONER’S EN-

TIRE COMPLAINT IS IN DIRECT CON-

FLICT WITH THE PRIOR HOLDINGS OF

THIS COURT st 1 een Pe Deccan 4

CONCLUSION ........ Pbinicedsuicdinsscotacuuirhedahinsamntettas, 8

(iii)

TABLE OF AUTHORITIES

Cases: Page

Blair v. Baltimore & O. R. Co., 323 U.S. 100

SRN ad bie cus tia Racoceenloumebcaiceenaaicudian tecancaatnnmess ; 6

Lillie v. Thompson, 332 U.S. 459 (1957) ................. 6, 7

McGivern v. Northern Pac. Ry. Co., 132 F.2d 213

PER acdtis GONE MIs. BOUIIED cocci sciccucinnicadsevescaiacseechavas 7

Rogers v. Missouri Pacific Railroad Co., 352 U.S.

See = EE o-oo caeceeheessansscasienaieacctiammeuasieie 4,5,6

Sinkler v. Missouri Pacific Railroad Company, 356

as Me I sce eget oeeeceeaeapan eect enueidge tesa 5

Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29

II coc cerea ea cre sweeten ee on eee Sie 7,8

Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54

BIND sacetassac spas tscaci acl nacnendieadiaama aaa Gs 6

Webb v. Illinois Central Railroad Co., 352 U.S. 512

TE eiscacutsvntananai pcr necurirciaacuausieasnaeooelodaadiaceomaio 5, 7

Statutes:

Judicial Code, 28 U.S.C. § 1254(1) ......0000.. 2

Federal Employers’ Liability Act, 45 U.S.C. § 51 .... 2

IN THE

Siywrenw Court of the United States

OCTOBER TERM, 1991

No, —————

JAMES D. HOLDINESS,

Petitioner,

CSX TRANSPORTATION, INC.,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The November 22, 1991. opinion of the United States

Court of Appeals for the Fourth Circuit affirming the

District Court’s order of summary judgment is an unpub-

lished per curiam opinion (Appendix la-2a). The deci-

sion of the United States District Court for the District

of Maryland affirmed by the Court of Appeals is unre-

ported (Appendix 3a-7a). These opinions are reproduced

in the Appendix to this Petition (Appendix la-7a).

JURISDICTION

The judgment of the Court of appeals is dated Novem-

ber 22, 1991. The jurisdiction of this Court rests upon

28 U.S.C. § 1254(1).

STATUTE INVOLVED

The pertinent sections of the Federal Employers’ Lia-

bility Act (45 U.S.C. § 51 et seq.) are as follows:

$51. Every common carrier * * * shall be liable

in damages to any person suffering injury while he

is employed by such carrier in such commerce, or, in

the case of the death of such employee, to his or her

personal representative, for the benefit of the sur-

viving widow or husband and children of such em-

ployee * * * for such injury or death resulting in

whole or in part from the negligence of any of the

officers, agents, or employees of such carrier, or by

reason of any defect or insufficiency, due to its negli-

gence, in its cars, engines, appliances, machinery,

track, roadbed, works, boats, wharves, or other

equipment * * *

$56. * * * Under this Chapter an action may be

brought ina... court of the United States * **.

STATEMENT OF THE CASE

On February 7, 1990, Holdiness filed suit in the United

States District Court for the District of Maryland under

the Federal Employers’ Liability Act (45 U.S.C. § 51

et seq.) alleging employer negligence in three separate

incidents (on 2/16/87, 6/25/87, and 10/6/87) which

resulted in personal injury to him. The details of these

incidents are recounted below.

On February 16, 1987, Holdiness was working alone

patrolling No. 3 track at the A & P Siding in Baltimore,

Maryand. While on his patrol, Holdiness observed that

the door to Boxcar FGER 96220 was open. In accord-

ance with his standing instructions from CSX, Holdiness

attempted to close the door and, in doing so, injured his

back. CSX knew that the door to Boxcar FGER 96220

was hard to close, but had not warned Holdiness of this

defect which was the proximate cause of the injury

complained of.

On June 25, 1987, Holdiness was working alone, pa-

trolling CSX’s New Yard in Locust Point, Maryland, at

2:30 a.m. CSX, over the past two years, allowed wood,

Scrap, and other debris to accumulate in the New Yard.

CSX was also aware that there was frequent criminal

activity in this yard. Despite this, CSX required Holdi-

ness to patrol a debris-filled, high crime area alone. In

the early morning hours of June 25, 1987, Holdiness was

attacked and injured by a club-wielding criminal assail-

ant who probably obtained his club among the debris in

the yard, and sustained serious personal injury.

On October 6, 1987, while working in CSX’s Curtis

Bay Yard in Baltimore, Maryland, Holdiness was called

upon to help in an arrest. While in the course of as-

sisting in said arrest, Holdiness suffered injury which

was proximately caused by the negligence of CSX.

CSX answered Holdiness’ Complaint denying any neg-

ligence on its part on July 27, 1990. Discovery was un-

dertaken and completed prior to trial by all parties.

Holdiness’ deposition was taken on November 13, 1990.

On December 19, 1990, CSX filed a Motion for Summary

Judgment as to each of the three incidents complained of

in Holdiness’ Complaint. Holdiness filed a response to

CSX’s Motion for Summary Judgment on February 4,

1991.

The District Court granted CSX’s Motion for Sum-

mary Judgment as to the entire Complaint and entered

Judgment in favor of CSX on February 7, 1991.

A timely Appeal was noted on February 19, 1991, to

the United States Court of Appeals for the Fourth Cir-

cuit. Following the submission of briefs from each of

the parties and argument from each of the parties on

October 1, 1991, the United States Court of Appeals for

the Fourth Circuit affirmed by unpublished per curiam

opinion, the decision of the United States District Court

of Maryland on the reasoning of the District Court.

REASON FOR GRANTING THE WRIT

This FELA case presents only one issue for the Court’s

resolution. That issue is when the grant of a summary

judgment motion is appropriate under the FELA. The

decision below is in conflict with the prior holdings of

this Court and such a conflict can only be resolved by a

decision of this Court. This conflict should be resolved

in order to bring about uniformity of decision in cases

arising under the FELA. For these reasons, the Peti-

tioner prays this Court grant his Petition for a Writ of

Certiorari.

I. THE DECISION TO GRANT SUMMARY JUDG-

MENT AS TO THE PETITIONER’S ENTIRE COM-

PLAINT BELOW IS IN DIRECT CONFLICT WITH

THE PRIOR HOLDINGS OF THIS COURT

In Rogers v. Missouri Pacific Railroad Co., 352 U.S.

500 (1957), this Court plainly articulated the negligence

standard applicable to cases arising under the FELA:

Under this statute the test of a jury case is simply

whether the proofs justify with reason the conclusion

that employer negligence played any part, even the

slightest, in producing the injury or death for which

damages are sought. It does not matter that, from

the evidence, the jury may also with reason, on

grounds of probability, attribute the result to other

causes, including the employee’s contributory negli-

gence. Judicial appraisal of the proofs to determine

whether a jury question is presented is narrowly lim-

ited to the single inquiry whether, with reason, the

conclusion may be drawn that negligence of the em-

ployer played any part at all in the injury or death.

Judges are to fix their sights primarily to make that

appraisal and, if that test is met, are bound to find

that a case for the jury is made out whether or not

the evidence allows the jury a choice of other prob-

abilities. The statute expressly imposes liability upon

the employer to pay damages for injury or death due

‘In whole or in part” to its negligence. (Emphasis

added) /d., 506-7.

The Petitioner set forth evidence in responding to

CSX’s Motion for Summary Judgment that unquestion-

ably met the standard set forth in Rogers. With respect

to the incident of February 16, 1987, the Petitioner was

injured while attempting to close a defective boxcar door

(the defect being that the door was tampered with and

hard to close) in obedience to CSX’s requirement. that

the Petitioner attempt to close the door before he re-

quested assistance (App. 36a).

Here, there are two theories that would support “with

reason the conclusion that employer negligence played any

part, even the slightest, in producing the injury” com-

plained of. Jd. 506. First, CSX, although having actual

knowledge of the defective condition of the door, by a

prior incident the same day, did not warn the Petitioner

of the door’s condition (App. lla, 21la-23a, 35a-36a).

This alone is sufficient to support a finding of negligence

and it is no defense under the FELA that the incident

complained of may have been the result, in whole or in

part, of the act or omission of a co-employee. Sinkler v.

Missouri Pacific Railroad Company, 356 U.S. 326 (1958).

Second, a jury could find the procedures the Petitioner

was required to follow were unreasonable. If the only

way a worker can discover whether or not it is safe for

him to perform a task is to begin to undertake it, there

is certainly “ample evidence for a jury to determine

whether the procedure followed satisfied the standard to

be expected from a prudent man in light of the hazard

to be prevented.” Webb v. Illinois Central Railroad Co.,

352 U.S. 512, 514 (1957) (App. 36a-37a).

The incident of June 25, 1987, involves an assault on

the Petitioner by unknown person or persons wielding a

club. This occurred when the Petitioner was patrolling

CSX’s Locust Point Yard in Baltimore, Maryland. Here

again, the Petitioner easily meets the negligence stand-

ard required by Rogers. It was shown that the yard was

debris filled, not having been cleaned up in the two years

prior to the incident (App. 38a), and there was a recent

increase in criminal activity in the yard, as well (App.

37a). It was further shown that a jury could reason-

ably conclude the club with which the Petitioner was

beaten came from the debris in the Locust Point Yard

(App. 38a).

It is well-settled under the FELA that the statutory

duty to provide a reasonably safe place in which to work

is not a static one. This duty becomes greater and more

imperative as the risk increases. Blair v. Baltimore &

O. R. Co., 323 U.S. 100, 604 (1945). Tiller v. Atlantic

Coast Line R. Co., 318 U.S. 54, 67 (1943). In this in-

stance, despite evidence of increased criminal activity and

a debris-filled yard, the record discloses complete inaction

on the part of CSX.

A reasonable jury could conclude that the failure to

clean up the yard at reasonable intervals caused or con-

tributed to the harm complained of by providing poten-

tial attackers with weapons. Since CSX knows of crim-

inal activity in the Locust Point Yard, it is reasonably

foreseeable that a lone patrolman may be assaulted by

wrongdoers seeking either to escape or continue their

wrongful acts.

A case on point is Lillie v. Thompson, 332 U.S. 459

(1947), wherein the Plaintiff was required to work in

an isolated building in an out-of-the-way part of the

railroad’s yard that the railroad had reason to know was

frequented by dangerous characters. The Plaintiff suf-

fered a severe beating for which she sought damages.

The question for the court was whether, under the

FELA, the railroad owed the Plaintiff a duty of care to

protect her from a reasonably forseeable criminal act.

This court held: “that the forseeable danger was from

intentional or criminal misconduct is irrelevant; respond-

ent nonetheless had a duty to make reasonable provision

against it. Breach of that duty would be negligence, and

we cannot say as a matter of law that petitioner’s injury

did not result at least in part from such negligence.”

Id., 462.

Finally, a reasonable jury could conclude that the fail-

ure of CSX to respond to the increase in criminal activity

was in itself unreasonable in light of the increased risk

to CSX employees. Such a result is entirely consistent

with the result in Webb v. Illinois Central Railroad Co..

352 U.S. 512 (1957).

The final incident of October 6, 1987, resulted in the

Petitioner being injured while attempting to subdue and

handcuff a suspect. At issue here is CSX’s duty to pro-

vide reasonably safe tools and appliances such as are nec-

essary for the Petitioner to perform his assigned tasks

(App. 42a-43a). The Petitioner asserted his injury was

proximately caused by the failure of CSX to issue the

Petitioner and his co-workers with nightsticks as items

of general issue. The Petitioner asserted that if night-

sticks had been issued, he would not have been injured

(App. 43a). There is no question that part of the non-

delegable duty of care imposed on CSX by the FELA is

the obligation to provide the Petitioner and others simi-

larly situated with reasonably safe tools such as are nec-

essary for the Petitioner to perform his assigned tasks

with. McGivern v. Northern Pac. Ry. Co., 1382 F.2d 218

(U.S.C.A. 8th Cir. 1942). A reasonable jury could con-

clude that the failure to provide these tools and appli-

ances, as set forth by the Petitioner, was the proximate

cause of the injury complained of.

In order to recover under the Federal Employers’

Liability Act, it was incumbent upon petitioner to

prove that respondent was negligent and that such

negligence was the proximate cause in whole or in

part of the fatal accident. Tiller v. Atlantic Coast

Line R. Co., 318 U.S. 54, 67, 63 S.Ct. 444, 451, 143

A.L.R, 967. Petitioner was required to present pro-

bative facts from which the negligence and the cau-

sal relation could reasonably be inferred. “The es-

sential requirement is that mere speculation be not

allowed to do duty for probative facts after making

due allowance for all reasonably possible inferences

favoring the party whose case is attacked.” Galloway

v. United States, 319 U.S. 372, 395, 63 S.Ct. 1077,

1089, 87 L.Ed. 1458; Atchison, Topeka & Santa Fe

R. Co. v. Toops, 281 U.S. 351, 50 S.Ct. 281, 74 L.Ed.

896. If that requirement is met, as we believe it was

in this case, the issues may properly be presented to

the jury. No court is then justified in substituting

its conclusions for those of the twelve jurors. Ten-

nant v. Peoria & P.U. Ry. Co., 321 U.S. 29 (1944).

It is manifest in this case that the lower court has

decided to substitute its conclusions for those of a jury.

The Petitioner below clearly met his burden and showed

there were material facts in dispute between the parties

such that CSX’s Motion for Summary Judgment should

have been denied. The decision of the court below is in

clear conflict with the herein cited prior holdings of this

Court, such that a decision herein by this Court is vitally

necessary.

CONCLUSION

For the reasons set forth above, the Petitioner prays

this Court issue its Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit and

reverse the decision below.

Respectfully submitted,

IRVING SCHWARTZMAN *

ROGER J. GREEZICKI

SAVAGE & SCHWARTZMAN, P.A.

5 Light Street, 10th Floor

Baltimore, Maryland 21202

(410) 685-2713

Counsel for Petitioner

* Counsel of Record

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 91-1042

JAMES D. HOLDINESS,

Platntiff-A ppellant,

CSX TRANSPORTATION, INCORPORATED,

Defendant-A ppellee,

and

BALTIMORE & OHIO RAILROAD; CHESAPEAKE AND OHIO

RAILROAD, body corporates,

Defendants.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Frederic N. Smalkin, District Judge.

(CA-90-445-S)

Argued: October 1, 1991

Decided: November 22, 1991

Before HALL and MURNAGHAN, Circuit Judges, and

WILLIAMS, United States District Judge for the

Eastern District of Virginia, sitting by designation.

—_—

Affirmed by unpublished per curiam opinion.

COUNSEL

ARGUED: Roger John’ Greezickii SAVAGE &

SCHWARTZMAN, Baltimore, Maryland, for Appellant.

Stephen Bennett Caplis,s WHITEFORD, TAYLOR &

PRESTON, Baltimore, Maryland, for Appellee. ON

BRIEF: Irving Schwartzman, SAVAGE & SCHWARTZ-

MAN, Baltimore, Maryland, for Appellant. H. Russell

Smouse, WHITEFORD, TAYLOR & PRESTON, Balti-

more, Maryland, for Appellee.

OPINION

PER CURIAM:

James Holdiness filed this action pursuant to the Fed-

eral Employer’s Liability Act, 45 U.S.C. §§ 51-60, aileg-

ing that the negligence of his employer, CSX Transpor-

tation, Inc., caused him to suffer injuries on three sep-

arate occasions. Holdiness appeals the district court’s

order of summary judgment.

Our review of the record and the district court’s opin-

ion discloses that this appeal is without merit. Accord-

ingly, we affirm on the reasoning of the district court,

James D. Holdiness v. CSX Transportation, Inc., No.

CA-90-445-S (D. Md. February 7, 1991).

AFFIRMED

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil No. S 90-445

JAMES D. HOLDINESS,

Plaintiff,

Vv.

CSX TRANSPORTATION, INC.,

Defendant.

MEMORANDUM OPINION

[Feb. 8, 1991]

This is a case filed pursuant to the Federal Employer’s

Liability Act (FELA) for injuries suffered on three

different occasions by the plaintiff, a railroad police offi-

cer. The defendant has moved for summary judgment,

which the plaintiff has opposed, and no oral hearing is

deemed necessary.

The FELA, despite numerous legislative efforts to re-

form it to resemble the familiar no-fault workers’ com-

pensation schemes applicable to almost all other indus-

trial and office workers in the United States, remains

a fault-based system, under which an injured railroad

employee, to recover, must show that the negligence of

his or her employer played a part, however slight, in

producing the injury. Rogers v. Missouri Pacific Railroad

Co., 352 U.S. 500, 506 (1957). The fact that an action

is brought under the FELA does not, however, alter the

imperatives of Rule 56(c), as recently interpreted by

the Supreme Court in Celotex v. Catrett, 477 U.S. 317

(1986), and Anderson v. Liberty Lobby, Inc., 477 USS.

242 (1986). Under Rule 56, as interpreted in the cited

cases, to avoid summary judgment, the plaintiff must

produce evidence that, were the case at the directed ver-

dict stage, would justify a reasonable fact-finder in find-

ing for the plaintiff, without speculation or guesswork,

under the applicable standard of proof. Because plaintiff

in this case has not produced such quantum of evidence,

the defendant’s motion will be granted, for reasons as

stated below.

First, as to the incident of February 6, 1987, (Case

A), in which plaintiff suffered back pain while closing

a boxcar door, although the plaintiff has produced evi-

dence that another policeman had earlier found the same

door hard to close and asked for assistance in closing it,

there is no evidence, as from an inspection, etc., that

there was in fact any defect in the door, and, more im-

portantly, the evidence (plaintiff’s deposition at 32-41)

is that plaintiff chose not to utilize the tools or extra help

that were available to him to help close the door, but

simply chose to close the door by himself. Thus, because

no defect other than the fact that the door was earlier

found hard to close has been shown, the evidence fails to

make out a case for even the slight amount of railroad

negligence that must be shown under FELA to warrant

submission of the case to a jury, and summary judgment

will be awarded the railroad as to Case A.

Next, as to the incident of June 25, 1987, (Case B),

plaintiff was injured while patrolling a rail yard at 2:30

a.m., when jumped by two assailants, one of whom hit

him with a club which, according to plaintiff, resembles

wood that is found lying around the yard, although the

plaintiff could not definitively identify the origin of the

wood club. Plaintiff argues railroad negligence in having

the yard in such condition that the wood could be picked

up and used as a club. Obviously, a railroad is not

charged with a duty of care, even under the attenuated

negligence standard of FELA, that requires it to clean

up every piece of yard trash that could be turned into

a weapon by an assailant bent on doing mischief to a

policeman. Indeed, no one’s home or office is free of po-

tential weapons, and it would be ludicrous to hold the

railroad liable under a negligence standard if, say, a

disappointed stockholder attacked the CEO’s secretary

with the flower vase on his or her desk, which happened

to have been paid for by the railroad and placed there

by its interior designer. Because railroad yards could

not be kent free of potential weapons even under the

utmost exercise of care, no negligence inheres in the

presence of the wood “club,” even assuming that it was

a piece of rail yard trash.

Plaintiff’s second ground of negligence as to Case B

is an alleged deficiency in the lighting of the yard. Be-

cause plaintiff himself has admitted in deposition that

he cannot state whether additional lighting would have

done anything to disclose the presence of his darkly-

attired attackers, deposition at 73, he has not made out

a sufficient causal connection between the absence of more

lighting and the infliction of injury upon him to survive

summary judgment.

For his third contention of negligence as to Case B,

plaintiff claims that there should have been more patrol

officers assigned to the yard, which could have prevented

his being jumped by the assailants. This argument, how-

ever, does not raise a jury question, for there is no evi-

dentiary basis upon which a jury could conclude without

speculation that the railroad owed its police officers a

duty to see that they did not patrol alone and that breach

of that duty was a proximate cause of plaintiff’s injury.

After all, police officers, by the very nature of their

jobs, are sent into dangerous places, and the judgment

of their employers as to how many officers are needed to

do the job should not be subject to a jury’s post factum

review under a negligence standard, simply because one

officer was hurt on one occasion,

Finally, as to the injury of October 6, 1987, (Case

C), plaintiff claims that the railroad was negligent in not

furnishing him with a nightstick, by which he could have

subdued a large, resisting suspect before the suspect

(who was being apprehended by another officer to whose

assistance plaintiff had been called) could have managed

to land a blow on plaintiff. The difficulties with this

argument are, first, that plaintiff could have used, but

chose not to, his revolver to threaten the suspect into

submission, and, second and more importantly, that plain-

tiff did in fact subdue the suspect with one blow from

plaintiff’s large metal flashlight. There is no proof that

the flashlight would have been insufficient to this pur-

pose had plaintiff chosen to apply it to the suspect’s head

before the suspect got a punch off at plaintiff, nor is

there any proof that more than two officers were reason-

ably required to put the suspect under submission. In

short, there is insufficient evidence of railroad negligence

to warrant submitting Case C to the jury, and summary

judgment must also be entered in that case in favor of

the defendant.

The Court has considered the parties’ other arguments,

but finds that none of them merits discussion, in light of

the foregoing analysis.

For the reasons stated, an order will be entered sep-

arately, granting the defendant’s motion for summary

judgment, and entering judgment in its favor.

/s/ Frederic N. Smalkin

FREDERIC N. SMALKIN

U.S. District Judge

Dated: February 7th, 1991

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil No. S 90-445

JAMES D. HOLDINEssS,

Plaintiff,

Vv.

CSX TRANSPORTATION, INC.,

Defendant.

JUDGMENT ORDER

For the reasons stated in a Memorandum Opinion of

even date herewith, it is, by the Court, this 7th day of

February, 1991, ORDERED and ADJUDGED:

1. That the defendant’s Motion for Summary Judg-

ment BE, and the same hereby IS, GRANTED.

2. That judgment BE, and it hereby IS, ENTERED

in favor of the defendant, and against the plaintiff, as to

the entire complaint, with costs: and

3. That the Clerk mail copies hereof and of the fore-

going Memorandum Opinion to counsel.

S/ Frederic N. Smalkin

FREDERIC N, SMALKIN

U.S. District Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil Action No. S-90-445

JAMES D. HOLDINESS,

Plaintiff,

CSX TRANSPORTATION, INC.,

—_ Defendant.

DEFENDANT'S MOTION FOR SUMMARY

JUDGMENT

Defendant, CSX Transportation, Inc., by its under-

signed counsel, moves, pursuant to Federal Rule of Civil

Procedure 56, for summary judgment on all claims of the

Plaintiff in this case. The grounds of the motion are as

follows:

1. Plaintiff, James D. Holdiness, formerly a special

agent for Defendant, CSX Transportation, Inc., has

created three distinct claims pursuant to the Federal Em-

ployers’ Liability Act (FELA) for alleged personal in-

juries resulting from the alleged negligence of the De-

fendant on three different dates.

2. On February 16, 1987, Holdiness attempted to close

an open boxcar door which he had discovered at the A&P

Siding in Halethorpe, Maryland. He attempted to close

the door, as it appeared free of defect. As he tried to

push the door closed, he “felt a real sharp pain” in his

back. On the prior shift, Special Agent Howard W.W.

Thorn had spotted the same boxcar coor open, and had

closed and sealed the door with the assistance of Special

Agent Joseph Kidwell. Thorn saw no defect in the door.

Holdiness knew that, if he encountered a door which was

difficult to close, he was to call upon the car department

for various assistance.

3. On June 25, 1987, Holdiness was patrolling the

Locust Point Yard, checking freight cars, when he was

attacked by two unknown assailants, from an unknown

hiding place. Holdiness does not know if additional light-

ing would have revealed the assailants prior to the inci-

dent. One of the assailants attacked Holdiness with a

wooden “club”, which Holdiness produced at. his deposi-

tion. Holdiness claims that the wood “resembles” wood

in the railroad yard, but he does not know where it came

from.

4. On October 6, 1987, Holdiness responded to a call

for assistance from Special Agent Thorn at the Curtis

Bay Yard. After a fairly length chase, Thorn and Holdi-

ness cornered a suspected trespasser/thief on Cambria

Street. The suspect simulated a firing position, but was

observed to be unarmed. Thorn grabbed the suspect,

Holdiness went to assist Thorn, and the suspect struck

Holdiness one time. Holdiness subdued the suspect by

striking him with a Kel-light flashlight. Holdiness specu-

lates that more railroad personnel or additional weaponry

might have altered the incident somehow, but he has not

offered any such proof.

5. Defendant contends that there is no dispute as to

any material fact, and it is entitled to judgment on all

three claims as a matter of law.

6. Pursuant to Local Rule 105.1. Defendant attaches

a memorandum of reasoning and authorities in support

of this motion.

S/ H. Russell Smouse

H. RUSSELL SMOUSE

Stephen B. Caplis

STEPHEN B. CAPLIs

Whiteford, Taylor & Preston

Signet Tower—Suite 1400

Seven Saint Paul Street

Baltimore, Maryland 21202-1626

(301 347-8700

10a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil Action No. S-90-445

JAMES P. HOLDINESS,

Plaintiff

CSX TRANPORTATION, INC.,

Defendant

MEMORANDUM OF REASONING AND AUTHORI-

TIES IN SUPPORT OF DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT

Defendant CSX Transportation, Inc. (hereinafter

“Railroad”’), by its undersigned counsel, for memoran-

dum of reasoning and authorities in support of its mo-

tion for summary judgment, states:

I. UNCONTRADICTED MATERIAL FACTS?

A. Background Facts

1. As of February 16, 1987, Holdiness was a 39 year-

old Special Agent for the Railroad, and had been em-

ployed as a police officer with the Railroad for some sev-

enteen (17) years. (Holdiness Dep. [Exhibit A, 4at-

tached], pp. 4, 10).

1 All of the facts are derived from the deposition testimony of

Plaintiff, James D. Holdiness (hereinafter ‘‘Holdiness”) or the Affi-

davit of Special Agent Howard W.W. Thorn, III (hereinafter

“Thorn’’), as permitted by Federal Rules of Civil Procedure 56(c)

and (e). A copy of the Holdiness deposition transcript is attached,

marked “Exhibit A’. The Thorn Affidavit is attached, marked

“Exhibit B’. The Affidavit of Judith A. Hersey, who took the photo-

graphs of the wood allegedly involved in the June 25, 1987 incident,

and the photographs themselves, are attached, marked “Exhibit C’’.

lla

2. Holdiness carried a three fifty-seven magnum Colt

revolver, Kel-light stainless steel flashlight, Big Ben lan-

tern, hard hat, wire twister, and bolt bender, while on

the job (Exhibit A, pp. 11, 98, 99)

3. As a patrolman/Special Agent, it was Holdiness’

duty to protect Railroad employees and property (Ex-

hibit A, p. 12).

4. The railroad yards which Holdiness patrolled (Lo-

cust Point, Curtis Bay, Jessup and others) were at least

ten square miles in size (Exhibit A, pp. 12-14).

5. If Holdiness needed assistance, he would radio on

a walkie-talkie (Exhibit A, p. 16). Usually, three Rail-

road police patrolled the Baltimore yards on a given

shift (Exhibit A, p. 17).

6. During patrol, railear doors should be closed (Ex-

hibit A, p. 19). If an open door were discovered, Holdi-

ness was to check the car’s contents, report any missing

goods, look for suspects and missing goods, close and re-

seal the door (Exhibit A, p. 19). If the door was difficult

to close, Holdiness was to call the ear department to help

close the door (Exhibit A, pp. 19-20).

B. Incident of February 16, 1987

1. In the early morning of February 16, 1987, while

patrolling at A&P Siding in Halethorpe, Maryland, Holdi-

ness noticed an open door on boxcar FGER 96220 (Ex-

hibit A, pp. 31-32, and Exhibit 1 of the deposition ).

2. On the prior shift, on February 15, 1987, Special

Agent Thorn had also noticed an open door on boxcar

FGER 96220, inspected it, and closed the door with as-

sistance from Special Agent Joseph Kidwell. Thorn saw

no defects on the door (Thorn Affidavit [Exhibit B], pp.

1-2),

3. Holdiness knew, and assumed, that the open door on

FGER 96220 was the same car as that which Thorn had

reclosed and resealed (Exhibit A, pp. 37-38).

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4. Holdiness approached the boxcar, checked it for

missing contents, saw no defects on or about the door,

attempted to close the door and “felt a real sharp pain in

my back” (Exhibit A, pp. 32-40).

5. Holdiness knew he could call the car department for

assistance, but, because the door seemed to be properly

aligned, Holdiness believed he could close it alone (Ex-

hibit A, pp. 34-36). Holdiness knew that the car depart-

ment had pull jacks available for closing the door, but he

did not request one (Exhibit A, pp. 40-41).

C. Incident of June 25, 1987

1. On June 25, 1987 at approximately 2:30 a.m.,

Holdiness was on patrol at Locust Point yard when he

was attacked by two assailants who came upon him from

an unknown location (Exhibit A, pp. 71-73, and Deposi-

tion Exhibit 3).

2. The assailants attacked Holdiness with “a large

club” (Exhibit A, p. 74).

3. Holdiness brought a “club” to the deposition (Depo-

sition Exhibit 4, of which photographs, properly certified,

are attached as exhibit C) which he claims is the “club”

used by the assailants (Exhibit A, pp. 74-75).

4. Holdiness states that the club “resembles the wood

laying around the railroad yard” (Exhibit A, p. 75).

5. Holdiness has no knowledge of where the wood came

from (Exhibit A, p. 75).

6. While Holdiness claimed on his accident form that

the lighting was “deficient” (Deposition Exhibit 3), he ex-

plained that, as he did not know the assailants’ location,

he could not state whether additional lighting would have

disclosed the presence of the assailants prior to the inci-

dent (Exhibit A, p. 73).

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D. Incident of October 6, 1987

1. In the early morning of October 6, 1987, Holdiness

received a radio call for assistance from Agent Thorn at

the Curtis Bay yard (Exhibit A, pp. 90-91; Exhibit B,

p. 2).

2. In response to the call, Agent Thorn and Holdiness

chased, and caught up with, a suspected trespasser /

thief on Cambria Street (Exhibit A, pp. 91-93; Exhibit

B, p. 2).

3. The suspect turned toward Holdiness and Thorn,

and took a firing position, but was observed to be un-

armed (Exhibit A, p. 92; Exhibit B, p. 2).

4. Thorn attempted to place the suspect under arrest,

but the suspect (6’3” in height and weighing approxi-

mately 265 pounds) resisted (Exhibit A, pp. 92-93; Ex-

hibit B, pp. 2-3).

5. Holdiness attempted to assist Thorn at this point.

The suspect struck Holdiness once, and then Holdiness

struck the suspect once with his (Holdiness’) Kel-light

stainless steel flashlight (Exhibit A, p. 93 and Exhibit

B, p. 3).

6. The Kel-light flashlight can act as a baton or night-

stick (Exhibit B, p. 3).

7. Holdiness criticized the Railroad for not providing

enough men or enough equipment, but Holdiness did not

indicate how additional manpower or equipment would

have prevented the single blow from the suspect (Exhibit

A, pp. 94-95).

8. Holdiness’ use of the Kel-light enabled him and

Thorn to cuff the suspect (Exhibit A, p. 95; Exhibit B,

p. 3).

9. Holdiness chose not to attempt to apprehend the

suspect by use of his (Holdiness’) magnum revolver, be-

cause it is Holdiness’ practice to draw his gun only when

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he is going to use it (Exhibit A, pp. 96-97). Holdiness

made this decision, even in light of the suspect’s size and

inebriated condition (Exhibit A, p. 98).

Il. ARGUMENT

A. Incident of February 16, 1987

From the foregoing facts, in parts IIA and IIB, it is

clear that the Railroad had no notice of a defective con-

dition on the door of FGER 96220 at the time of Holdi-

ness’ mishap. O’Hara v. Long Island Railroad Company,

665 F.2d 8 (2nd Cir. 1981). Moreover, as Agent Thorn

(with assistance) had closed the door on the previous

shift, and had not perceived any defect in the door, the

Railroad had every reason to believe that the door was

simply heavy, and not defective (Exhibit B, pp. 1-2).

Holdiness knew that assistance was available to close

the door. He was the man on the scene. He chose to close

the door by himself. Wadiak v. Ollinois Cent. R. Co., 208

F.2d 925 (7th Cir. 1953).

Nor can Holdiness rely on res ipsa loquitur. He was

handling the door when the incident occurred. There can

be no inference of negligence independent of Holdiness

himself. Wadiak, at p. 928; Stillman v. Norfolk v. West-

ern Railway Company, 811 F.2d &34, 837 (4th Cir.

1987). As in Mosco v. Baltimore & Ohio Railroad, 817

F.2d 1088 (4th Cir. 1987), the sole cause of this incident

appears to be Holdiness himself, either the technique he

used or his failure to request assistance.

B. Incident of June 25, 1987

Holdiness admits that the assailant may well have re-

mained hidden from view, regardless of the amount of

lighting available. Thus, even if the Railroad had sup-

plied insufficient lighting (and there is no evidence, ex-

pert or otherwise, as to what the “sufficient” level would

be), there is no causal connection between lighting and

15a

the incident. See IIC supra, and Hurley v. Patapsco &

Back Rivers R. Co., 888 F.2d 327, 329 (4th Cir. 1989)

(directed verdict upheld because no competent evidence

of insufficient lighting). See also Atchison T & S.F. Ry.

Co. v. Toops, 281 U.S. 351 (1931): Brady v. Southern

Ry. Co., 320 U.S. 476 (1943) (causation a necessary ele-

ment of an FELA claim).

As to the club, Holdiness admits that he has no knowl-

edge that the “club” actually was wood from the rail

yard. In fact, Holdiness testified that he “guessed” the

club came from the rail yard because it “resembled”

wood from the vard. The photographs attached demon-

Strate that the wood has no unusual characteristics which

would indicate that it was the property of the Railroad

(Exhibit C). In these circumstances, Holdiness has

simply not provided competent proof to authenticate the

wood as the Railroad’s. Wigmore, On Evidence, Vol. VII,

§ 2129, particularly at pp. 704-705 (1978 ed.) ; Moore’s

Federal Practice, Vol. II, Article IX, pp. 9-16 and 9-17,

$901.4 (2nd ed. 1989). Riehendollay v. Diamond M.

Drilling Company, 784 F.2d 580, 582 (5th Cir. 1986);

contrast United States »v. Browne, 829 F.2d 760, 766 (9th

Cir. 1987) (gun admissible when witnesses expressed

“certainty” as to its use in a robbery).

Even if the wood were admissible, Holdiness has made

no case that the particular wood used in the incident had

been at the rail yard for any particular time to put the

railroad on notice. O'Hara, supra. Moreover, as Holdi-

ness indicated, his job was to protect Railroad employees

and property, and if he believed the wood to be danger-

ous, it was his duty to remove it or otherwise notify the

appropriate Railroad personnel. As in Sowards v. Ches-

apeake & O. Ry. Co., 580 F.2d 713, 715 (4th Cir. 1975),

the employer “could not be negligent in failing to warn”

Holdiness “of the presence” of the wood as Holdiness had

“seen” the wood on numerous occasions.

16a

Finally, the Railroad contends that it is simply not

foreseeable that a piece of wood, from parts unknown,

would be used to harm Holdiness. Under any interpre-

tation of the FELA’s elements, the instant factual

scenario was not one reasonably foreseen by the Rail-

road. Compare Aldridge v. Baltimore and Ohio R. Co.,

789 F.2d 1061 (4th Cir. 1986) aff'd en bane 814 F.2d

157 (1987) vacated and remanded 486 U.S. 1049 (1988)

reh’g damages only 866 F.2d 111 (4th Cir. 1989).

C. Incident of October 6, 1987

Holdiness criticizes the lack of manpower present at

the scene, but offers no evidence that more Railroad per-

sonnel would have prevented the one blow which the sub-

ject landed upon Holdiness. Toops and Brady, both

supra. He and Thorn both state that the one blow from

the Kel-light flashlight was sufficient to subdue the sus-

pect, so that the Railroad apparently did provide suffi-

cient personnel to perform their police duties on that oc-

casion. The Railroad is not an insurer of its employees’

welfare; Holdiness’ attempt to make the Railroad re-

sponsible for a single punch thrown by a criminal suspect

can only succeed if the Railroad is so held. Jnman v.

Baltimore & Ohio R. Co., 361 U.S. 138 (1960) ; Ambold

v. Seaboard Air Line Railroad Company, 345 F.2d 30

(4th Cir.) cert. den. 382 U.S. 831 (1965); Bridger v.

Union Railway Company, 355 F.2d (6th Cir. 1966).

Even if Holdiness could prove that the Railroad should

provided him with additional help, his proof utterly fails

to show that further help would have prevented the in-

jury. In St. Louis-San Francisco Ry. Co. v. Mills, 271

U.S. 344 (1926), a car inspector was shot and killed

during the strike during a rail strike. The Supreme Court

held that decedent’s estate had failed to demonstrate a

causal connection between the lack of additional guards

(there was one) and the killing:

‘.. . Whether one or more additional guards would

have prevented the killing is in the highest degree

17a

speculative. The undisputed evidence is that the

shooting was done by one or more of three men stand-

ing on the rear platform of the car. They had come

there after decedent and his companions had seated

themselves in the car. Without warning they fired

a volley into the car, and fled. Decedent and his

guard were armed, but had no opportunity to defend

themselves. On such a state of facts the jury should

not have been permitted to conjecture what might

have happened if an additional guard had been

present. . .”

277 U.S. 347, (emphasis supplied, citations omitted).

Likewise, in this case, a jury should not have to conjec-

ture whether the suspect, in his inebriated condition and

given his evident size (Exhibit A, p. 94, pp. 97-98, Ex-

hibit B, pp. 2-3), would have landed a single punch on

Holdiness, even if more help were available.

As to the “lack of nightstick”, Holdiness testified that

he himself had not sought to arm himself with this

particular weapon, although he could have done so (II C.,

supra, Exhibit A, p. 100). See Wadiak, supra. Moreover,

the effect of the presence of a nightstick is just as spec-

ulative as the “additional manpower” conjecture. Mills,

supra. Finally, Holdiness admits, and Thorn confirms,

that use of the Kel-light flashlight effectively subdued the

suspect. Both negligence and proximate cause are lacking

from Holdiness’ own proof, and Thorn’s Affidavit (IIC,

supra).

III. CONCLUSION

The Railroad contends it is entitled to summary judg-

ment on each of the three claims in this case because:

A. The February 16, 1987 incident involved no defect

of the door. Manpower and tools were available from the

car department had Holdiness desired assistance to close

the door. Any damage to the door between Agent Thorn’s

shift and Holdiness’ encounter was totally unknown to

18a

the Railroad, as Holdiness was the next subsequent in-

spector, after Thorn.

B. The June 25, 1987 incident was caused by assailants

performing a criminal act, for which the Railroad is not

responsibie. Sowards, supra. Holdiness admits that de-

ficient lighting, if it existed, had no causal relationship

to the incident. The wooden “club” used by one of the

assailants had not been identified as the Railroad’s;

moreover, by itself, the piece of wood was not a reason-

ably foreseeable weapon. Even if its use as a weapon

could have been foreseen, the danger was known to Holdi-

ness, who testified that he had seen such wood lying

around ‘“‘for two years” in the yard. Jd.

C. The incident of October 6, 1987, the single punch

from a large, inebriated arrestee, is a danger inherent

to Holdiness’ job. Neither additional manpower nor ad-

ditional weaponry would probably or necessarily have

prevented the one punch. Moreover, Holdiness chose to

use his Kel-light flashlight, which did succeed in sub-

duing the suspect. Holdiness also chose not to arm him-

self with a nightstick.

D. If, for any reason, the Court determines not to

grant summary judgment on all claims, the Railroad

alternately requests the Court to grant summary judg-

ment as to those claims for which the Court determines

that there is no dispute as to material fact and the Rail-

road is entitled to judgment as a matter of law.

19a

Respectfully submitted,

H. Russell Smouse

H. RUSSELL SMOUSE

Stephen B. Caplis

STEPHEN B. CAPLIs

Whiteford, Taylor & Preston

Signet Tower—Suite 1400

Seven Saint Paul Street

Baltimore, Maryland 21202-1626

(301) 347-8700

20a

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 19th day of De-

cember, 1990, I mailed, postage prepaid, a copy of De-

fendant’s Motion for Summary Judgment; supporting

Memorandum and Exhibits B and C to the following:

Irving Schwartzman, Esquire

Savage and Schwartzman

5 Light Street, 10th Floor

Baltimore, Maryland 21202

/s/ Stephen B. Caplis

STEPHEN B. CAPLIS

Z2la

EXHIBIT B

AFFIDAVIT

I, the undersigned, a male citizen of the State of

Maryland, over the age of eighteen (18) years, do affirm

on my personal knowledge and pursuant to the penalties

of perjury as follows:

1. I have been a Special Agent for CS¥ Transporta-

tion, Inc., or its predecessors, for over fifteen (15) years.

Among my duties as a Special Agent, I inspect freight,

and I check for damage or vandalism or break-in to

various rail cars that are located in various yards owned

or operated by CSX Transportation, Inc. in the State of

Maryland. I also have the power, authority and respon-

sibility to apprehend and arrest those persons caught

committing offenses, such as theft or assault on CSX

Transportation, Inc. property.

2. On February 15, 1987, I was inspecting boxcars at

the A&P Siding, when I discovered five (5) boxecars whose

doors were opened to various degrees, with seals missing,

which conditions indicated that the doors had been tam-

pered with. Among the railcars I inspected was boxcar

FGER 96220. After inspecting that boxcar and determin-

ing that it could be closed and resealed, I attempted to

close the door. The door would not respond to my force,

so I called for assistance. With the help of Joseph Kid-

well, another Special Agent, I was able to close the door

of that boxcar. There was no apparent defect in the door,

but it was simply hard to close. As of 5:00 p.m. or there-

abouts on February 15, 1987, to my personal knowledge,

the doors of boxcar FGER 96220 had been resealed. Gen-

erally, boxcar doors are heavy, and many take more than

one person to close. In fact, I have had occasion to need

assistance to close a new boxcar door which had been

tampered with and opened.

22a

3. On October 6, 1987 at approximately 4:07 a.m. I

entered the east end of Curtis Bay Yard in order to check

the security of certain high value loads. I observed a

white Ford pickup truck at that time, backed up to the

railroad tracks near the scale house, within the confines

of the Curtis Bay Yard. At that time, I further cbserved

two (2) white males standing at the rear of the truck.

They immediately started running west into a woods

adjacent to the railroad yard.

I requested assistance from Special Agents W.E.

Wiitala and James D. Holdiness, who both responded to

the scene. Subsequently, | saw one of the suspects run-

ning west on Cambria Street, and as Special Agent Holdi-

ness pulled his vehicle into the intersection of Cambria

Street and Fairhaven Avenue, the suspect turned and

brought his hands from behind his back as if he were

armed, into a two-hand stance pointed at Holdiness. The

suspect was observed to be unarmed at that time.

I exited my vehicle at that location and a foot chase

began west on Cambria Street. Special Agent Holdiness

and myself caught up with the suspect about one-half

block further along Cambria Street and attempted to

place him under arrest. The suspect was six foot three

inches (6’ 3”) in height and weighed approximately 265

pounds. I was six foot two inches (6’ 2”) tall and

weighed 245 pounds at that time. Special Agent Holdi-

ness was approximately five foot eleven and a half inches

(5’ 11 1/2”) tall and weighed approximately 180 to 185

pounds. The suspect struck at me with his fist and

missed. He then shoved me.

As Special Agent approached the suspect and me, the

suspect attempted to break away from my grasp and

struck me in the right shoulder. He then turned toward

Holdiness and struck him in the left side with his fist.

I attempted to grab the suspect again and Special Agent

Holdiness struck the suspect over his left eye with Holdi-

aoa

ness’ kel-light, and that blow stunned the suspect long

enough for us to handcuff him.

Kel-light is a flashlight with an extended handle

which acts as a baton or nightstick. Special Agent Holdi-

ness’ kel-light had been issued to him to the best of my

knowledge. Mine was also issued by the railroad. Both

myself and Special Agent Holdiness had purchased fire-

arms which we were both carrying at this time. We were

required to carry firearms by both railroad and Maryland

State regulations.

Because the suspect was unarmed, it was our duty to

physically subdue him in any event. The kel-light was

adequate to stun the suspect and, in effect, permit us to

~apture him.

s/ Howard W. W. Thorn, III

Special Agent

HOWARD W. W. TuHorN, III

DATED: November 27, 1990

| —_

24a

EXHIBIT C

AFFIDAVIT

I the undersigned am a female citizen of the State of

Maryland over the age of eighteen (18) years and am

competent to testify to the within matters on my per-

sonal knowledge and under the penalties of perjury:

1. I am presently employed as a legal secretary at the

law firm of Whiteford, Taylor & Preston at Suite 1400,

Seven Saint Paul Street, Baltimore, Maryland 21202. I

have been so employed for the past three (3) years.

2. On Monday, December 10, 1990, at the offices of

Whiteford, Taylor & Preston, I took photographs of a

single piece of wood marked Holdiness Deposition Ex-

hibit 4. Those photographs are attached to this Affidavit.

The photographs are a fair and accurate representation

of the piece of wood.

3. The piece of woud itself is located at the office of

Stephen B. Caplis, Esquire, an attorney-partner of White-

ford, Taylor & Preston, on the 13th floor, Seven Saint

Paul Street, Baltimore, Maryland 21202.

s, Judith A. Hersey

JUDITH A. HERSEY

5 oe

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Fa ee oe FN

RF OF SS SS

son

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30a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil Action No. S-90-445

JAMES D. HOLDINESS,

Plaintiff

CSX TRANSPORTATION, INC.,

Defendant

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 4th day of Febru-

ary, 1991, a copy of Plaintiff’s Response to Defendant’s

Motion for Summary Judgment and Memorandum of

Authorities in Support of Plaintiff’s Response to Defend-

ant’s Motion for Summary Judgment was hand-delivered

to Stephen B. Caplis, Esquire, Whiteford, Taylor &

Preston, Seven Saint Paul Street, Suite 1400, Baltimore,

Maryland 21202-1626, attorneys for Defendant.

SAVAGE & SCHWARTZMAN, P.A.

s’ Irving Schwartzman

5 Light Street, 10th Floor

Baltimore, Maryland 21202

(301) 685-2713

Attorneys for Plaintiff

3la

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil Action No. S-90-445

JAMES D. HOLDINEsS,

Plaintiff

CSX TRANSPORTATION, INC.,

Defendant

PLAINTIFF’S RESPONSE TO DEFENDANT'S

MOTION FOR SUMMARY JUDGMENT

Now comes the Plaintiff, James D. Holdiness, by Savage

& Schwartzman, P.A., and Irving Schwartzman, his at-

torneys, and responds to the Defendant’s Motion for

Summary Judgment as follows:

1. That based upon the Plaintiff’s Answers to Defend-

ant’s Interrogatories, the Plaintiff’s Deposition (both of

which are attached to the Plaintiff’s Memorandum as

Exhibits A and B, respectively), and the existing law

governing actions arising under the F.E.L.A., the De-

fendant is not entitled to summary judgment.

WHEREFORE, the Plaintiff prays this Honorable

Court deny the Defendant’s Motion for Summary Judg-

ment.

SAVAGE & SCHWARTZMAN, P.A.

s’ Irving Schwartzman

IRVING SCHWARTZMAN

5 Light Street, 10th Floor

Baltimore, Maryland 21202

(801) 685-2713

Attorneys for Plaintiff

32a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil Action No. S-90-445

JAMES D. HOLDINESS,

Plaintiff

CSX TRANSPORTATION, INC.,

Defendant

MEMORANDUM OF AUTHORITIES IN SUPPORT OF

PLAINTIFF’S RESPONSE TO DEFENDANT'S

MOTION FOR SUMMARY JUDGMENT

Now comes the Plaintiff, James D. Holdiness, by Savage

& Schwartzman, P.A., and Irving Schwartzman, his at-

torneys, and, pursuant to Local Rule 105 submits this

Memorandum in support of his Response to Defendant’s

Summary Judgment Motion.

I. STANDARD OF REVIEW APPLICABLE TO

MOTIONS FOR SUMMARY JUDGMENT

The basic standards and procedures governing sum-

mary judgment motions are set forth in Federal Rule of

Civil Procedure 56. That Rule in relevant part (F.R.C.P.

56(c)) provides that a Motion for Summary Judgment

shall be granted to the moving party “if the pleadings,

depositions, answers to interrogatories and admissions on

file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the

“moving party is entitled to a judgment as a matter of

law.”

The purpose of the summary judgment rule is not to

try the case on its merits, but to determine whether any

Danner ca lena» at cat

33a

real dispute exists as to any material fact. Swettlen v.

Wagoner Gas & Oil, Inc., 369 F.Supp. 893 (U.S.D.C. Pa.

1974). Becker v. Safelite Gas Corp., 244 F.Supp. 625

(U.S.D.C. Ks. 1965). Walgren v. Howes, 482 F.2d 95

(U.S.C.A. Ist. Cir. 1973). As the above-cited rule indi-

cates, there are two Separate issues upon which the mov-

ing party must prevail before a summary judgment mo-

tion may be granted: whether the moving party has

shown there is no dispute as to any material fact and

whether, based on that showing, the moving party is

entitled to judgment as a matter of law.

In determining whether a dispute as to material fact

exists, all inferences are drawn: in favor of the non-

moving party. Adickes v. S. H. Kress & Co., 398 US. 144

(1970).

Finally, the points of similarity between a motion for

directed verdict under Federal Rule of Civil Procedure 50

and a motion for summary judgment under Rule 56

Should be noted here. Under both rules. the moving party

must show an absence of issues of material fact and that

the moving party is, as a matter of law, entitled to

prevail. Motions made under either rule require all in-

ferences be drawn in favor of the non-moving party.

(See generally Wright & Miller, Federal Practice and

Procedure, § 2713.1). Essentially, both motions cal] upon

the court to make the same determination and therefore,

a case which sets forth the standard necessary to make

out a jury question under the F.E.L.A. sets forth a

standard applicable to both rules in determining whether

a summary judgment or directed verdict should be

granted or denied.

The Supreme Court has addressed itself to the ques-

tion of what standard shall be applied to cases arising

under the F.E.L.A. to determine whether or not a jury

question has been made out most directly in Rogers v.

Missourt Pacific Railroad Co., 352 U.S. 500 (1957). In

that case, the Supreme Court said:

34a

Under this statute the test of a jury case is simply

whether the proofs justify with reason the conclusion

that employer negligence played any part, even the

slightest, in producing the injury or death for which

damages are sought. It does not matter that, from

the evidence, the jury may also with reason, on

grounds of probability, attribute the result to other

causes, including the employee’s contributory negli-

gence. Judicial appraisal of the proofs to determine

whether a jury question is presented is narrowly

limited to the single inquiry whether, with reason,

the conclusion may be drawn that negligence of the

employer played any part at all in the injury or

death. Judges are to fix their sights primarily to

make that appraisal and, if that test is met, are

bound to find that a case for the jury is made out

whether or not the evidence allows the jury a choice

of other probabilities. The statute expressly imposes

liability upon the employer to pay damages for in-

jury or death due “in whole or in part” to its negli-

gence. (Emphasis added) /d., 506-7.

The Plaintiff contends that the twin questions here,

whether there is any genuine dispute as to any material

fact and whether, in the absence of such dispute, the

Defendant is entitled to judgment as a matter of law

must be decided in the context of the standard set forth

in Rogers above. Simply put, in order to prevail here,

the Defendant must show that there is no dispute as to

any material fact that the negligence of the Defendant

did not play the slightest part in producing the injury

for which the Plaintiff is seeking damages. Failure on

the part of the Defendant to meet the above standard

must result in the denial of the Defendant’s Summary

Judgment Motion.

35a

II. ANALYSIS OF FACTS AND AUTHORITIES

CONCERNING PLAINTIFF’S CASE A, THE

OCCURRENCE OF FEBRUARY 16, 1987

In his Deposition, the Plaintiff testified part of his

normal duties as a railroad policeman was to close and

secure open doors on loaded boxcars. (Exhibit B pp. 32-

4) It was the practice of the Plaintiff to inspect the door

of a boxcar prior to attempting to close it. If the door

appeared to be lined up on its tracks and otherwise ex-

hibited no defects, the Plaintiff would attempt to close

it himself. (Exhibit B pp. 35-6) The Plaintiff further

testified that at the time of the incident, the procedure

under which he operated in the normal course of his

duties required him to attempt to close the door by him-

self and only summon aid if a problem developed. (Ex-

hibit B p. 36)

The affidavit of Special Agent Howard W. W. Thorn,

III, reads, in relevant part as follows:

On February 15, 1987, I was inspecting boxcars at

the A&P Siding, when I discovered five (5) boxcars

whose doors were opened to various degrees, with

seais missing, which conditions indicated that the

doors had been tampered with. Among the railcars I

inspected was boxcar FGER 96220. After inspecting

that boxcar and determining that it could be closed

and resealed, I attempted to close the door. The door

would not respond to my force, so I called for assist-

ance. With the help of Joseph Kidwell, another Spe-

cial Agent, I was able to close the door of that box-

car. There was no apparent defect in the door, but

it was simply hard to close. As of 5:00 p.m. or

thereabouts on February 15, 1987, to my personal

knowledge, the doors of boxcar FGER 96220 had

been resealed. Generally, boxcar doors are heavy,

and many take more than one person to close. In

fact, I have had occasion to need assistance to close

36a

a new boxcar door which had been tampered with

and opened.

Despite the Defendant’s assertions that the Plaintiff

was the sole cause of the occurrence complained of, it is

apparent that there are material facts in dispute that

preclude the granting of Defendant’s Motion.'' The Plain-

tiff’s response to Defendant’s interrogatories 1 and 3 (see

Exhibit A), when read together with the Plaintiff’s Depo-

sition (Exhibit B, pp. 34-8) make it clear that the “de-

fective condition” of the boxcar door refers to the door

being hard to move. It is uncontradicted based on the

evidence before the Court that the Defendant’s oral job

procedures required the Plaintiff to close open doors by

himself if physically able to do so.

Since Special Agent Thorn’s Affidavit indicates he

found the door involved in the occurrence complained of

required assistance to close, this knowledge can reason-

ably be imputed to the Defendant. It is clear from

Thorn’s Affidavit that he did not report to anyone the

door required assistance to close. It was certainly fore-

seeable that this boxcar door might be opened by persons

unknown after Thorn and his co-workers, Kidwell, left

scene.

Taking the situation here as a whole, it is clear that

the granting of Defendant’s Motion would be unwar-

ranted. Based on the Plaintiff's uncontradicted testimony

' Plaintiff draws the Court’s attention to two statements on page 6

of Defendant’s Argument which are simply inaccurate. The defend-

ant states “He (Holdiness) chose to close the door by himself.” This

is not true; choice was not the Plaintiff’s—-he was required to close

the door by hi:aself if possible. (Exhibit B p. 36) The second state-

ment concerns the assertion on the part of the Defendant that it

had nc knowledge of a defective condition on the door the Plaintiff

attempted to move. This will be dealt with more fully below, but it

must be stated that Special Agent Thorn’s knowledge the door was

hard to close is imputed to the Defendant. See: Sinkler v. Mo. Pace.

RR Co., 356 U.S. 326 (1958).

37a

that procedures in force governing the performance of his

duty required him to attempt to close the open door if

possible, the Plaintiff’s testimony and Thorn’s that there

was no apparent defect in the appearance of the door

(nor, according to the Plaintiff, was the door off track,

Exhibit B, p. 35), negligence on the Plaintiff’s part can-

not be reasonably inferred due to his decision to try to

shut the door. Based on the standard set forth in Rogers

(whether the negligence of the Defendant played any

part, even the slightest, in bringing about the harm com-

plained of) a reasonable jury could certinly find the fail-

ure of Thorn to tell anyone that the door required more

than one person to close it was the negligence that

brought about the harm. Simply put: but for Thorn’s

failure to report the difficultly with the door, the occur-

rence complained of would not have taken place. With

no apparent defect in the door, a reasonable person would

have no reason to suspect more than one person needed

be required to close it, only Special Agent Thorn with

actual knowledge could warn anyone of the defect, and

he did nothing. The negligence of Special Agent Thorn

in doing nothing (which, as previously noted is imputed

to the Defendant), led directly to the injury the Plaintiff

suffered.

III. ANALYSIS OF FACTS AND AUTHORITIES

CONCERNING PLAINTIFFS CASE B, THE OC-

CURRENCE OF JUNE 25, 1987

The question here (in the absence of anything other

than Plaintiff's Answers to Interrogatories or Deposition }

is whether, based on the Plaintiff’s statements, any negli-

gence on the part of the Defendant can be shown. The

answer is an unqualified yes.

The Plaintiff testified at his Deposition that there had

been quite a few burglaries and thefts in the Locust

Point Yard, where the occurrence complained of took

place. (Exhibit B p. 71). At the time of the occurrence

38a

complained of, the Plaintiff was alone, checking freight

cars when he was attacked by two white males who came

up in front of him and struck him with a club. (Exhibit

B pp. 72-5) The Plaintiff testified that he could not

state exactly from his own personal knowledge where

- the club (or wood) came from, but that it resembled

wood he had seen lying around in the railroad yard.

The Plaintiffs also testified that it had been a couple of

years since the railroad yard he was patrolling had been

cleaned up, and there was wood and debris lying around

in the yard. (Exhibit B pp. 75-7)

The Plaintiff, in response to Defendant’s interrogatory

number 3, which asks the Plaintiff to set forth the facts

supporting his allegations of negligence, responded with

respect to case B as follows:

The Defendant was negligent in failing to furnish

me with a reasonably safe place in which to work, in

keeping its yard clear of debris, requiring me to pa-

trol said area alone, failing to provide me with suffi-

cient manpower, and failing to provide adequate

lighting for said area which I was directed to patrol,

and also in providing me with defective radio equip-

ment. Plaintiffs reserves the right to claim rule

violations.

In support of its Motion for Summary Judgment, the

Defendant insists that, because there is no evidence of

causal connection between lighting and/or the lack

thereof in the New Yard, at Locust Point, and the harm

the Plaintiff suffered, and because the Plaintiff cannot

prove that the club he was attacked with was the rail-

road’s, they are entitled to have their Motion for Sum-

mary Judgment granted. The railroad additionally con-

tends that it was not foreseeable that a piece of wood,

which may or may not have come from the Locust Point

Yard, would be used as a weapon and that on the addi-

tional grounds of absence of foreseeability, they are en-

titled to have their Motion granted.

———

39a

Even though there is no testimony, expert or otherwise,

as to what the appropriate amount of lighting in the

New Yard would be, this is not fatal to the Plaintiff's

case. The uncontradicted testimony here reveals certain

salient facts from which a jury can infer negligence on

the part of the Defendant. It is uncontradicted that

there had been numerous burglaries and thefts in the

New Yard. Plaintiff further testified that he was aware

that arrests have been made ia that yard. (Exhibit B

p. 71) It is, therefore, unquestioned that criminal activ-

ity was occurring in the yard the Plaintiff was patrolling.

It is also unquestioned that there is debris, pieces of

wood, and so on, around this yard, which has not been

cleaned up in a couple of years.

Defendant, in its Motion assumes that the Plaintiff

cannot show negligence on the part of the Defendant

solely on the issue of lighting. In view of the contra-

dicted testimony above, a reasonable jury could find neg-

ligence in the Defendant’s failure to provide the Plaintiff

with sufficient manpower to patrol the New Yard and the

harm complained of.

Nowhere does the Defendant, in its Motion for Sum-

mary Judgment, address this issue which is raised by

Plaintiff in his answer to Defendant’s interrogatory num-

ber 3. If negligence may be found in the fact that the

Defendant required the Plaintiff to patrol the New Yard

alone, and failed to provide him with sufficient’ man-

power in order to safely patrol the yard, then the De-

fendant’s Motion must be denied.

In view of the uncontradicted testimony to the effect

that criminal activity is known to be occurring in this

precise yard that the Plaintiff was patrolling, it would be

reasonable for any jury to conclude that the occurrence

complained of was caused by requiring the Plaintiff to

patrol alone and failing to provide him with sufficient

manpower (that is patrolling in teams) to prevent the

40a

occurrence complained of. The situation here is analo-

gous to that in Lillie v. Thompson, 332 U.S. 459 (1947).

In that case, the Plaintiff was a telegraph operator

required to work in an isolated part of the Defendant’s

Memphis Railroad Yard. No provision to light the area

or guard or patrol it was made despite the knowledge on

the part of the Defendant that the yard was frequented

by dangerous persons. The Plaintiff suffered a criminal

assault and permanent injury as a result thereof. The

trial court dismissed the Complaint for failure to state a

cause of action and the 6th Circuit Court of Appeals af-

firmed without opinion. The Supreme Court reversed

saying:

We are of the opinion that the allegations in the

Complaint, if supported by evidence, will warrant

submission to a jury. Petitioner alleged in effect that

respondent was aware of conditions which created a

liklihood that a young woman performing the duties

required of petitioner would suffer just such an in-

jury as was in fact inflicted upon her. That the

foreseeable danger was from intention or criminal

conduct is irrelevant; respondent nonetheless had a

duty to make reasonable provision against it. Breach

of that duty would be negligence and we cannot say

as a matter of law that petitioner’s injury did not

result at least in part from such negligence. /d.,

461-2.

Here, the situation is substantially the same. The

Defendant, with actual knowledge of the dangers the

Plaintiffs will face makes no provision for the Plaintiff

to have additional help on patrol. Based on the Defend-

ant’s actual knowledge of the situation in its New Yard,

it is certainly foreseeable (as it was in Lillie above) that

someone will be attacked. It is certainly foreseeable that

a lone patrolman may be (as the Plaintiff was) set upon

by superior numbers to enable the persons committing

4la

the criminal acts to continue them or escape detection.

Here, as in Lillie, it cannot be said as a matter of law

that Plaintiff’s injuries did not at least in part result

from the Defendant’s negligence.

The issue of where the club used to attack Plaintiff

came from is certainly a material fact in dispute. On

the one hand, the Plaintiff testified to wood and debris

lying around New Yard and that the club resembled the

wood around the yard. The Defendant insists that the

Plaintiff has not provided “competent proof to authenti-

cate the wood as the Railroad’s” and that somehow this

failure is fatal to the Plaintiffs case. This is not so.

That the Plaintiff was attacked with a club is not ques-

tioned. It is also unquestioned that Defendant’s counsel

is now in possession of the club. Finally, it is uncontra-

dicted that the wood lying about the New Yard resembles

that in the club. There are two permissable inferences at

this point—either the attackers broucht the club with

them or picked it up from among the debris in the vard.

In any event, whichever theory prevails, either is equally

likely and supported by evidence. No, the Plaintiff cannot

prove beyond a reasonable doubt that the club used to

strike him was in the New Yard for eleven months and

twenty-five days—nor to prevail here or at trial does he

have to. As the Supreme Court noted in Landover v.

Kurn, 327 U.S. 645 (1946), whenever there is a factual

dispute or “the evidence is such that fair-minded men

may draw different inferences, a measure of speculation

and conjecture is required on the part of those whose

duty it is to settle the dispute by choosing what seems to

them to be the most reasonable inference.” Jd., 653. The

factual dispute here requires submission.

The Defendant’s last two points are easily disposed

of. Defendant makes the point that there is nothing to

suggest the precise wood used as the club was in the

Defendant’s yard long enough to put the Defendant on

notice of it. This point is irrelevant. The Plaintiff testi-

42a

fied that the New Yard had not been cleaned out in two

years and that there were various accumulations of wood

and debris in the yard. Two years seem more than suffi-

cient to put the Defendant on notice of a problem.

Finally, the Defendant asserts “it is simply not fore-

seeable that a piece of wood, from parts unknown, would

be used to harm Holdiness’. This assertion crosses the

boundaries of incredibility. The Defendant would assert

it cannot foresee a weapon being used on one of its spe-

cial agents (and where the wood came from has already

been addressed) despite the problems of criminal activ-

ity occurring in the New Yard. Here, it is uncontradicted

that the Plaintiff knew of burglaries and thefts in the

New Yard; knew of arrests by its employees in the New

Yard but could not foresee (after having put special

agents in the New Yard to suppress criminal activity)

that the perpetrators of said activity would use a weapon,

either brought by them or thoughtfully provided by the

Defendant from one of the wood/debris piles in the New

Yard, to injure one of the Defendant’s special agents.

The proposition here falls of its own weight.

IV. ANALYSIS OF FACTS AND AUTHORITIES

CONCERNING PLAINTIFF’S CASE C, THE

OCCURRENCE OF OCTOBER 6, 1987

Here again, the Defendant, in its Motion fails to ad-

dress the Plaintiff’s allegations of negligence in their

entirety. Again, in his Answers to Interrogatories, the

Plaintiff sets out a basis upon which negligence on the

part of the Defendant might be found. In his answer

to interrogatory number 3, the Plaintiff asserts the De-

fendant was negligent in failing to furnish him with

“proper tools and equipment to restrain prospective

arrestees.”’

The Plaintiff testified that he was issued a hand-held

railroad lantern, hardhat, wire twister and bolt bender.

43a

He was not issued a gun, kel-light or nightstick by the

Defendant. He was required to purchase a gun by the

Defendant. (Exhibit B pp. 99-101) Earlier, the Plain-

tiff testified that “if Special Agent Thorne had a night-

stick, he could have—they show you a hold with Balti-

more City Training Academy where you put it around

their neck and handle arrestees that way. I think if he

had had a nightstick, he could have done that’. (Exhibit

B p. 95)

]

There can be no question that it is reasonably foresee-

able the Plaintiff and others holding similar positions with

the Defendant would be required, at some point, to sub-

due a suspect. It is therefore, reasonable to expect the

Defendant will provide reasonably safe appliances and

tools such as are necessary for the Plaintiff to perform

his assigned tasks. WeGirern v. Northern Pac. Ry. Co.,

132 F.2d 213 (U.S.C.A. 8th Cir. 1942). Aflantie Coast

Line R. Co. v. Dixon, 189 F.2d 525 (1951). Here, Plain-

tiff asserts the failure of the Defendant to provide a

nightstick was the proximate cause of the harm he suf-

fered.” Moreover, the Plaintiff offers clear evidence (set

forth above) tending to show why this is so. Unlike the

situation cited by the Defendant in St. Louis-San Fran-

cisco Ry. Co, v. Mills, 27 U.S. 344 (1926), here, the

Plaintiff has demonstrated a causal connection between

absence of a nightstick being an item of standard issue

and the injury suffered by the Plaintiff. As can be seen,

the test enumerated in Rogers has been met here. There

is evidence that the negligence of the Defendant con-

tributed even in the slightest to the harm the Plaintiff

suffered. This being the case, the granting of the De-

fendant’s Motion woud be inappropriate.

2It is worth noting that while the Plaintiff insists kel-lights and

nightsticks were not items of general issue, Special Agent Thorn,

in his Affidavit, states that the Plaintiff was issued

the Defendant. A clear factual dispute on this issue

a kel-light by

44a

V. CONCLUSION

Based upon the aforegoing argument, the Plaintiff con-

tends that the Defendant has failed to show itself en-

titled to summary judgment as a matter of law with

respect to Cases A, B or C, and that the Defendant’s

Motion should be denied.

SAVAGE & SCHWARTZMAN, P.A.

s/ Irving Schwartzman

IRVING SCHWARTZMAN

5 Light Street, 10th Floor

Baltimore, Maryland 21202

(301) 685-2713

Attorneys for Plaintiff

45a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil No. S-90-445

JAMES D. HOLDINESS,

Plaint iff

CSX TRANSPORTATION, INC.,

Defendant

ORDER

Having read and considered the Plaintiff’s Response to

Defendant’s Motion for Summary Judgment and Mem-

orandum of Authorities in Support thereof, it is this

— day of February, 1991,

ORDERED that the Defendant’s Motion for Summary

Judgment be and same is hereby DENIED.

Judge

46a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil Action No. S-90-445

JAMES D. HOLDINESS,

Plaintiff

CSX TRANSPORTATION, INC.,

Defendant

DEFENDANT’S REPLY IN SUPPORT

OF ITS MOTION FOR SUMMARY JUDGMENT

Plaintiff’s response to Defendant’s motion for summary

judgment, states as follows:

Defendant, CSX Transportation, Inc., for reply to

I. THE INCIDENT OF FEBRUARY 16, 1987

A. The Plaintiff claims that the Defendant has mis-

stated the record when it indicates that the Plaintiff

chose to close the door himself. Defendant respectfully

refers the Court to Defendant’s Exhibit A, p. 37:

Q. Okay. Was the suggestion made to get a hold of

the ear department—

A. That was practical.

Q. I’m not trying to put words in your mouth,

but—

A. Yes, we had been told to get a hold of the car

department if possible, you know.

47a

@. Did you make an attempt to do that this evening

or did you simply believe that you could close the

door?

A. I believed I could close the door.

Q. So you didn’t call the car department?

A. No, sir.

(Emphasis supplied). That Plaintiff may have testified

contradictorily somewhere else, although Defendant does

not believe Plaintiff has done so, is no bar to summary

judgment. Rohrbough v. Wyeth Laboratories, Inc., 916

F2d. 970, 975 (4th Cir. 1990).

B. All Agent Thorn’s affidavit discloses is that the

door was heavy and hard to close. This status does not

equal a defect. Nor does the fact that, subsequent to

Thorn’s closing the doer, unauthorized persons reopened

the door, impute any “knowledge of defect” to the De-

fendant. On the contrary, as Thorn found no defect,

Defendant’s knowledge of “defect” arose, if at all, only

when Plaintiff discovered the open door and attempted to

close it.

C. Because of the intervening act of the burglars/

vandals, and the uncontradicted affidavit of “no defect”

from Agent Thorn, there is no competent proof of any

causal connection between Thorn’s encounter with the

door and Plaintiffs. Even if Thorn could be deemed neg-

ligent (sheer speculation on this record), the intervening

reopening of the door makes it impossible to determine

what, if any, defect resulted in Plaintiff’s injury.

II. THE INCIDENT OF JUNE 25, 1987

A. Plaintiff’s knowledge of prior burglaries is imma-

terial in this case, because Plaintiff himself was part of

the railroad’s effort to detect or prevent each wrongdoing.

239

B. The question of “sufficient manpower” (Response,

p. 10) is speculative, as there is no way to determine if

48a

additional patrol personnel would or could have _ pre-

vented the incident. St. Louis-San Francisco Ry. Co. v.

Mills, 271 U.S. 344 (1926).

C. Lillie v. Thompson 332 U.S. 459 (1947) is inap-

posite because it deals with the situation where no pro-

tection is provided to railroad personnel against fore-

seeable physical danger. Here, Plaintiff is the embodi-

ment of such protection. Significantly, he can cite no

case where a railroad was held derelict in failing to “pro-

tect the protectors.”

D. Plaintiff does not contend that there was a history

of assaults upon railroad police at the Locust Point Yard.

In fact, he does not indicate any hisiory of violent crime

at that yard. The Defendant had no reason to believe

that he was in physical peril, other than what any se-

curity personnel may encounter, prior to June 25, 1987.

E. On the issue of the “club”, Plaintiff has made no

showing that any competent evidence of its being from the

railroad yard exists. Plaintiff has not refuted any of the

legal citations by Defendant. In fact, Plaintiff concedes

(Response, p. 12) that it is equally likely that the assail-

ants brought the club with them, as it is that they found

the club in the railyard.

Ill. THE INCIDENT OF OCTOBER 6, 1987

A. As Plaintiff concedes (Response, p. 14), he only

speculated at his deposition that Thorn’s use of a night-

stick ‘could have” subdued the perpetrator. This surmise

is not competent proof.

B. Plaintiff does not refute that his use of the Kel-

light successfully subdued the perpetrator.

C. The source of the Kel-light (Response, p. 15, fm.

‘ } + eee a ne een”

2) 1s not a dispute of material fact.

49a

IV. CONCLUSION

Plaintiff has not demonstrated, as he must, a dispute

of material fact such as to avoid summary judgment.

Celotex Corp. v. Catrett, 477 U.S. 321 (1986) ; Anderson

v. Liberty Lobby, Inc., 477 U.S. 242 (1986). If anything,

Plaintiff’s response confirms that all three incidents were

simply unfortunate accidents or routine risks which the

nature of Plaintiff’s employment occasionsd.

/s/ Stephen B. Caplis

STEPHEN B. CAPLIS

Whiteford, Taylor & Preston

Signet Tower—Suite 1400

Seven Saint Paul Street

Baltimore, Maryland 21202-1626

(301) 347-8700

CERTIFICATE OF SERVICE

I hereby certify that on this 5th day of February,

1991, I mailed, postage prepaid, a copy of this Reply to

Irving Schwartzman, Esquire, 10th Floor, 5 Light Street,

Baltimore, Maryland 21202.

/s/ Stephen B. Caplis

STEPHEN B. CAPLIS

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.